Probation Officer Special Rule–extra judicial conditions

In the recent case of Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 12-13 (Pa. 2012), the Pennsylvania Supreme Court was confronted with the issues of whether a county board of probation offices, or the agents and officers thereof, can impose conditions upon probationers that are not explicitly delineated in a trial court’s sentencing and probation order. The Court concluded that this inquiry revolves around an interpretation of the Sentencing Code, 42 Pa.C.S. §§ 9701, et seq., as well as the Prisons and Parole Code, 61 P.S. § 1, et seq. and 61 Pa.C.S. § 101, et seq. The court also examined the relationship between “terms and conditions of probation,” as used in Sections 9754 and 9771 of the Sentencing Code, which a trial court imposes, and “conditions of supervision” as contemplated by the Prisons and Parole Code, which the Board and its agents execute.

The court reviewed the fourteen conditions that a court may place upon a probationer, stating:

These conditions, found in 42 Pa.C.S. § 9754(c), “shall” be imposed by a sentencing court “to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). Moreover, these conditions are inherently non-inclusive, because clause (13) of Section 9754(c) permits a court to impose any condition necessary to ensure the “rehabilitation of the defendant.” Id. § 9754(c). Consistent, then, with a court’s constitutional and statutory authority to impose a sentence, see e.g. id. §§ 9751, 9754, & 9771, these fourteen conditions must be the starting point in any analysis of a probation violation.

Initially, the court preliminarily agreed with Appellee that the Board and its agents cannot impose any condition of supervision it wishes, carte blanche. This would, of course, interfere with a court’s well-established sentencing authority. The Court rejected the primary argument of the Commonwealth that Section 9798.3 of Megan’s Law gives the Board independent authority to impose any condition of supervision it wishes upon a probationer subject to the sex offender provisions merely because of his status as a sex offender. Furthermore, the court noted that the legislature’s intent in promulgating Section 9897.3 was simply to permit the Board to use GPS tracking on sex offenders in furtherance of the desire to scrutinize the physical location of offenders. See Senate Journal, Jun. 19, 2006 at 1730-31 (remarks of Sens. Orie and Rafferty).

Nonetheless, the court rejected the probationer’s position that the Board has no power to impose conditions of supervision would ignore that 61 Pa.C.S. §§ 6131(a)(5)(ii) and 6151 direct the Board and its agents to establish and impose “conditions of supervision,” distinct from “conditions of probation.” The court concluded that the Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court. This interpretation gives meaning to all of the statutory provisions relevant to this case and thus: (1) maintains the sentencing authority solely with a trial court; (2) permits the Board and its agents to evaluate probationers on a one-on-one basis to effectuate supervision; (3) sustains the ability of the Board to impose conditions of supervision; and (4) authorizes that a probationer may be detained, arrested, and “violated” for failing to comply with either a condition of probation or a condition of supervision.

“A trial court may impose conditions of probation in a generalized manner, and the Board or its agents may impose more specific conditions of supervision pertaining to that probation, so long as those supervision conditions are in furtherance of the trial court’s conditions of probation.” Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 19-21 (Pa. 2012)

This case focused around a condition of probation that a sex offender under Megan’s Law Supervision, could not be within 1000 feet of any location that would cause him to come in contact with minor children unsupervised, which in turn would constitute a violation of his probation. The court determined that there was no evidence in the record to reach this issue and therefore sent the case back to superior court to determine such.